Breaking France’s addiction to its state of emergency

Human Rights Watch’s own research
has found repeated abuses against ordinary people during policing operations
under emergency powers.

Protesters march through Nantes with a puppet dressed as a judge wearing a police officer's cap, during a demonstration against the state of emergency on February 20, 2016. Niglaut Kevin/Press Association. All rights reserved.Like an addict, France does not know
how to quit its state of emergency even though it has become clear that maintaining
it erodes the rule of law and fosters human rights abuses while not keeping the
country safer. The February 22 report by the parliamentary
commission tasked with monitoring the state of emergency provided yet another
reminder that it no longer serves any meaningful purpose.

The commission president, Dominique
Raimbourg, from the governing Socialist Party, noted that activity under the
state of emergency has been “greatly reduced” since the last extension. His fellow
commission member, Jean-Frédéric Poisson, from the main opposition party Les
Republicains, noted that “time that passes erodes the efficiency and nature
of the state of emergency.” A French commission of inquiry into the Paris
attacks had already concluded back in July 2016 that
the state of emergency had “limited impact” on improving security and any
effect it may have had “quickly dissipated.”

Human Rights Watch’s own research has found repeated
abuses against ordinary people during policing operations under emergency
powers.

So why is France maintaining the
state of emergency despite repeated warnings by its own oversight mechanisms?

Dangerous
confusion, calculation and cowardice

It is mainly due to confusion by
politicians about the purpose of a state of emergency. Many have said that it
is justified by an ongoing terrorist risk. This was clearly displayed in
December 2016 when Interior Minister Bruno Le Roux justified his request for a fifth
extension by saying that “the terrorist threat was at its highest.” Under this reasoning,
a state of emergency is needed as long as there is a high security risk.

This reasoning is dangerous on many
levels. By suggesting that regular laws, procedures, and oversight mechanisms are
not sufficient to counter threats, it weakens the premise of the rule of law
and relegates it to a luxury for “normal” times. But it also sets the stage for
the trap in which France finds itself. French leaders have implied that they
will only lift the state of emergency when the security risk has subsided but
since they can’t predict the risk of future terrorist attacks, they prefer to maintain
it rather than pay a political price if a subsequent attack takes place.

So lifting the state of emergency becomes
less dependent on security considerations and more on political calculations.
This would explain why France’s latest extension was driven by the electoral
calendar, punting the issue to the next president and legislature. Call it
political procrastination, or perhaps more aptly, political cowardice.

This disconnect between its initial
purpose and current raison d’être was captured nicely by Sébastien Pietrasanta,
a parliamentarian and rapporteur for the commission investigating the state’s response
to the November 2015 attacks, who recently noted that “the effect of the
state of emergency is fading and yet we extend it…even though the link with
terrorism is quite tenuous.”

I have seen this logic at play in
the Middle East. Egypt and Syria, countries I have worked on for years,
maintained their states of emergency for 31 and 48 years respectively. Every
time the state of emergency was up for renewal, the country’s rulers argued
that the risk was still there or that the timing was not right to lift it.
France is not a tin-pot autocracy and its rulers are not despots, but there is
a cautionary tale in these experiences.

Exception
vs. extension - an election debate

It is time to reframe the debate in
France. A continuing state of emergency should not be dependent on the
existence of risk – an exogenous measure that cannot be controlled by political
calculations. It should be restricted to situations where there is an
exceptional need for exceptional measures at an exceptional moment. It may have
been justified for a few days immediately after the November 2015 attacks as
the country’s security forces were caught unprepared. But it should have been
lifted as soon as the institutions resumed their normal functioning –
regardless of whether the underlying security threat has been addressed.

The French government’s own website on the fight against terrorism noted in August 2016 that the government
has “completed its legal arsenal and put in place an unprecedented
reinforcement of its means in the police, justice, army and intelligence
services.” France already has a raft of laws under the non-emergency regime
that permit the authorities to investigate, detain, and prosecute terrorism suspects.
Judicial controls in no way impede their effectiveness.

France needs to adopt a clear path
out of the state of emergency. The parliamentary commission monitoring the
state of emergency suggested in December setting an upper limit on the
extension of a state of emergency but parliament ignored it and voted a fifth
extension with almost no debate. Candidates in the upcoming presidential
election have largely avoided talking about the issue, perpetuating the procrastination
strategy by the political class, and journalists have not pushed them on the
issue.

It is no longer enough to wait and
hope that the security threat will simply vanish or that the future president
or legislature will finally decide to tackle the issue. The debate about
lifting the state of emergency should become a priority topic in this presidential
election. Like any addict hoping to recover, France needs to start by
recognizing the problem and begin a serious conversation on how to quit.

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